Functional Equivalents of the Border, Sovereignty, and the ...

Functional Equivalents of the Border,Sovereignty, and the Fourth Amendment

The fourth amendment's restrictions on searches do not applyat the nation's borders. Law enforcement agents may search anyindividual entering the country even without a warrant or a show-ing of probable cause.' According to the Supreme Court, this bor-der search exception may apply with equal force away from theactual border at locations that are "functional border equivalents."The Court, however, has never defined a functional borderequivalent or set forth the scope of searches it would permit atsuch a location.

The two circuits most closely concerned with these questionshave provided quite different answers. The Fifth Circuit has per-mitted warrantless searches at "distant" border equivalents-thoseareas where a majority of the traffic through a checkpoint is inter-national.2 The Ninth Circuit has limited warrantless searches to"virtual" border equivalents-those areas where all but an insignif-icant portion of the traffic is international.' In practice this disa-greement translates into a striking difference in the kinds ofsearches permissible in near-border areas within these twocircuits.4

I For a discussion of the development of the border search exception to the fourthamendment, see infra notes 10-17 and accompanying text.

This comment uses the term "border search" in a very narrow sense. The term refersonly to routine searches by customs or border patrol agents conducted pursuant to statutoryauthority but without the probable cause or warrant safeguards otherwise required by thefourth amendment. The paradigm customs search involves the routine opening and searchof travelers' luggage, while the paradigm immigration search involves the search of thetrunk of an automobile. This comment does not address the question of the reasonablenessof more intrusive border searches such as strip searches or body cavity probes. These havebeen amply discussed in the literature. See, e.g., Ittig, The Rites of Passage: BorderSearches and the Fourth Amendment, 40 TENN. L. REv. 329 (1973); Note, From Bags toBody Cavities: The Law of Border Search, 74 COLUM. L. REv 53 (1974) [hereinafter cited asNote, Bags to Body Cavities]; Note, Border Searches and the Fourth Amendment, 77 YALEL.J. 1007 (1968) [hereinafter cited as Note, Border Searches].

2 See United States v. Alvarez-Gonzalez, 561 F.2d 620 (5th Cir. 1977), discussed infratext accompanying notes 27-31.

' See United States v. Bowen, 500 F.2d 960 (9th Cir. 1974), aff'd on other grounds, 422U.S. 916 (1975), discussed infra text accompanying notes 32-35.

4 The importance of the definition of a "functional equivalent" of the border is appar-ent, for example, when one considers the magnitude of the immigration problem. There are

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The University of Chicago Law Review

This comment criticizes the current approaches to functionalborder equivalence and suggests an alternative. Part I traces thedevelopment of both the border search exception and the conceptof functional border equivalence. The approaches of the Fifth andNinth Circuits are shown to suffer from the Supreme Court's fail-ure to explain sufficiently the underlying purposes of the bordersearch exception. As a result, the Fifth Circuit defines functionalborder equivalence too broadly, the Ninth Circuit too narrowly.Part II suggests that the border search exception in fact arises outof the sovereign nation's special interests in activities at its perim-eter. At the actual border these interests are sufficiently strong toovercome any individual interests in privacy and autonomy pro-tected by the fourth amendment.

Part III reformulates functional border equivalence in light ofthis understanding. It shows that sovereign and individual inter-ests vary with the location and purpose of the search, and suggeststhat a theory of functional border equivalence must balance theseinterests in any given context. The comment borrows interest-balancing methodology from the Court's jurisprudence of adminis-trative searches to define what the fourth amendment should re-quire at "distant" border equivalents in the context of immigrationand customs searches. Because sovereign and individual interestsdiffer in these two situations, the comment concludes that immi-gration searches at distant border equivalents should be permittedunder reduced probable cause and warrant requirements but thatcustoms searches require full fourth amendment safeguards.

I. THE DEVELOPMENT OF THE BORDER SEARCH EXCEPTION AND

THE CONCEPT OF FUNCTIONAL BORDER EQUIVALENCE

A. The Border Search Exception

The fourth amendment prohibits "unreasonable" searches andseizures. 5 According to the Supreme Court, a search is always rea-

between 10 and 12 million illegal aliens in the United States. In 1983 the Immigration andNaturalization Service (INS) apprehended over 1.1 million illegal aliens, see U.S. DEP'T OF

COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 91 (1985), about one-quarter ofthem at purported functional border equivalents. INS Border Patrol Summary Report (Oct.1983-Sept. 1984) (on file with The University of Chicago Law Review). This required exam-ining approximately 5,489,000 conveyances, including 3,861,000 automobiles, and question-ing over 14 million people. STATISTICAL ABSTRACT OF THE UNITED STATES, supra, at 91.

5 The right of the people to be secure in their persons, houses, papers, and effects,against unreasonable searches and seizures, shall not be violated, and no Warrantsshall issue, but upon probable cause, supported by Oath or affirmation, and particu-larly describing the place to be searched, and the persons or things to be seized.

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Fourth Amendment Border Equivalents

sonable when conducted in accordance with a warrant supportedby probable cause." The probable cause requirement provides aframework for balancing the government's interest in the search,which depends primarily on the likelihood that it will reveal evi-dence of unlawful activity, against the individual's interests in pri-vacy and autonomy.7 The warrant requirement ensures that thisbalancing is performed by disinterested judicial officers.8 In excep-tional circumstances, however, the government's interest may bestrong enough to eliminate the warrant and probable causerequirements.9

The Supreme Court has held that border searches constitutesuch an exceptional circumstance; the historical practice of war-rantless searches and their acceptance at the time the Bill ofRights was adopted indicate that border searches are inherently"reasonable," and thus exempt from the fourth amendment's prob-able cause and warrant requirements.10 The acceptance of the bor-der search doctrine is demonstrated by the fact that in 1789 thefirst Congress, which proposed the fourth amendment, also enacteda customs statute authorizing the warrantless search of any ship orvessel entering the United States.1"

U.S. CONST. amend. IV.

6 See, e.g., Katz v. United States, 389 U.S. 347, 357 (1967); Johnson v. United States,

333 U.S. 10, 14 (1948).7 See generally Illinois v. Gates, 462 U.S. 213, 239 (1983) (relaxed standard for deciding

whether informant's tip established probable cause achieves the "accommodation of publicand private interests that the Fourth Amendment requires"); Zurcher v. Stanford Daily, 436U.S. 547, 565 (1978) (requirement of probable cause "should afford sufficient protection" ofnewspaper's first amendment rights); Johnson v. United States, 333 U.S. 10, 14 (1948) (judi-cial officer must decide "[w]hen the right of privacy must reasonably yield to the right ofsearch").

A Johnson v. United States, 333 U.S. 10, 14-15 (1948); see also Torres v. Puerto Rico,442 U.S. 465, 471 (1979); Delaware v. Prouse, 440 U.S. 648, 655 (1979); Marshall v. Barlow'sInc., 436 U.S. 307, 313 (1978).

1 Exceptions to the warrant requirement have been "jealously and carefully drawn."Jones v. United States, 357 U.S. 493, 499 (1958). Probable cause is generally required, how-ever, both when a warrant is necessary, see, e.g., Illinois v. Gates, 462 U.S. 213, 239 (1983),and even when a warrant may be dispensed with, see, e.g., United States v. Ross, 456 U.S.798, 807-08 (1982) (automobile search); Chambers v. Maroney, 399 U.S. 42, 48 (1970)(same). In rarer instances, probable cause itself may even be dispensed with. The bordersearch is one such instance. See United States v. Ramsey, 431 U.S. 606, 616-19 (1977). Forother exceptions, see United States v. Villamonte-Marquez, 462 U.S. 579, 592-93 (1983)(probable cause not required for boarding of vessels in certain waters for inspections ofdocuments); People v. Hernandez, 229 Cal. App. 2d 143, 150-51, 40 Cal. Rptr. 100, 104(1964) (probable cause not required for searches of parolees and probationers); cf. Camara v.Municipal Court, 387 U.S. 523, 534-39 (1967) (probable cause standard relaxed for certainhealth, safety, and fire inspections).

10 United States v. Ramsey, 431 U.S. 606, 616-619 (1977).11 The statute provided:

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On several occasions the Court has hinted at potential ra-tionales for the border search exception which underlie the histori-cal approach. For example, in 1886 the Supreme Court, in dictum,interpreted the actions of the early Congresses to mean that thedrafters of the fourth amendment did not intend the probablecause and warrant requirements to reach border searches. 12 In alater case, the Court suggested a different basis for the exception,observing that "[t]ravellers may be . . stopped in crossing an in-ternational boundary because of national self-:protection reasona-bly requiring one entering the country to identify himself as enti-tled to come in, and his belongings as effects which may belawfully brought in."'

While these two examples imply that something more thanhistory lies behind the border search exception, the modern Courthas been content to base its continued approval of the exceptionalmost entirely on historical grounds without exploring more

That every collector, naval officer and surveyor, or other person specially appointed byeither of them for that purpose, shall have full power and authority, to enter any shipor vessel, in which they shall have reason to suspect any goods, wares or merchandisesubject to duty shall be concealed; and therein to search for; seize, and secure any suchgoods, wares or merchandise ...

Act of July 31, 1789, ch. 5, § 24, 1 Stat. 29, 43. The adoption of similar customs laws by thesecond and fourth Congresses, see Act of Aug. 4, 1790, ch. 35, §§ 48-51, 1 Stat. 145, 170; Actof Feb. 18, 1793, ch. 8, § 27, 1 Stat. 305, 315; Act of March 2, 1799, ch. 22, §§ 68-71, 1 Stat.627, 677-78, whose membership also included many of the original framers of the Constitu-tion, further strengthens the argument that border searches have a historical acceptanceequal to that of the fourth amendment.

In contrast, the first federal immigration regulation, which barred convicts and prosti-tutes, was not enacted until 1875. Act of March 3, 1875, ch. 141, § 5, 18 Stat. 477, 477-78.But cf. Act of Feb. 19, 1862 §§ 2158-64, 18 Stat. 379 (prohibiting importation of Chinese andJapanese servants). This historical statutory distinction between authority for customssearches and authority for immigration searches was eliminated in 1971 when federal regula-tions empowered border agents to enforce both immigration and customs laws. 36 Fed.Reg. 13,410 (1971). This concurrent authority has been termed the "two hats" doctrine,United States v. McDaniel, 463 F.2d 129, 134 (5th Cir. 1972), cert. denied, 413 U.S. 919(1973), and removes any statutory distinctions which might previously have existed betweenthe customs and immigration search powers.

The current customs statute authorizes searches conducted by the Bureau of Customsunder the supervision of the Treasury Department. The pertinent enforcement provisionsare:

Any of the officers. . . may stop, search, and examine, . . .any vehicle, beast, or per-son, on which or whom he or they shall suspect there is merchandise which is subject toduty. . . and to search any trunk or envelope, wherever found, in which he may have areasonable cause to suspect there is merchandise which was imported contrary tolaw, . . .

19 U.S.C. § 482 (1982); see also 19 C.F.R. 162.5-162.7 (1985).12 Boyd v. United States, 116 U.S. 616, 623 (1886).13 Carroll v. United States, 267 U.S. 132, 154 (1925).

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19851 Fourth Amendment Border Equivalents 1123

deeply the government's true underlying interests. Indeed, inUnited States v. Ramsey,14 an important recent decision on theexception, the Court emphasized that the "longstanding recogni-tion that searches at our borders without probable cause and with-out a warrant are nonetheless 'reasonable' has a history as old asthe Fourth Amendment itself."' 5 Although susceptible to criti-cism,16 this historical justification has become the Court's standardreply to challenges to the border search exception."

B. Functional Border Equivalence

1. Supreme Court Cases. The Supreme Court has also said,albeit in dicta, that the border search exception may apply tosearches performed away from the actual border at "functionalborder equivalents." In Almeida-Sanchez v. United States," theCourt gave two examples:

Whatever the permissible scope of intrusiveness of a routineborder search might be, searches of this kind may in certaincircumstances take place not only at the border itself, but atits functional equivalents as well. For example, searches at anestablished station near the border, at a point marking theconfluence of two or more roads that extend from the border,might be functional equivalents of border searches. For an-other example, a search of the passengers and cargo of an air-plane arriving at a St. Louis airport after a nonstop flightfrom Mexico City would clearly be the functional equivalentof a border search.'9

The Court did not, however, set forth a principle that relates these

"4 431 U.S. 606 (1977).15 Id. at 619 (citation omitted)." See Note, Beyond the Border of Reasonableness: Exports, Imports and the Border

Search Exception, 11 HOFSTRA L. REv. 733, 745-52 (1983) (contending that the juxtapositionof legislative enactment does not justify the abrogation of the fourth amendment since thecustoms statute was passed prior to the proposal of the fourth amendment); Note, BorderSearches, supra note 1, at 1011 (arguing that historical standards of reasonableness are notapplicable in a modern context); cf. Holmes, The Path of the Law, 10 HARv. L. REv 457, 469(1897) ("It is revolting to have no better reason for a rule of law than that so it was laiddown in the time of Henry IV.").

17 See United States v. Montoya de Hernandez, 105 S. Ct. 3304, 3309 (1985); Ramsey,431 U.S. at 616-19; United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, 125(1973); United States v. 37 Photographs, 402 U.S. 363, 376-77 (1971); cf. United States v.Villamonte-Marquez, 462 U.S. 579, 592-93 (1983) (approving a seaborne search on the samebasis). But see infra note 38 and accompanying text.

's 413 U.S. 266 (1973).1 Id. at 272-73 (footnote omitted).


examples to the border search exception. The Court held only thatthe search in the case at hand-a roving patrol on a highwaytwenty-five miles from the border-did not fall within the func-tional border search exception.20

Although Almeida-Sanchez contains the Court's only descrip-tion of places that might qualify as functional border equivalents,two other cases bear on this issue and suggest the scope of permis-sible government conduct at near-border locations. In UnitedStates v. Martinez-Fuerte,21 the Court approved brief investiga-tory stops by border patrol agents without probable cause at fixedcheckpoints that were conceded not to be functional borderequivalents.22 Probable cause was not necessary, according to theCourt, because the stop entailed only a limited intrusion, resultedin little stigmatization, and involved relatively little exercise of dis-cretion by the agents.23 Conversely, in United States v. Ortiz,4 theCourt required probable cause for searches by border patrol agentsat checkpoints admitted not to be functional border equivalents,2 5

on the ground that searches are more intrusive than mere stops.The Court also thought these searches were more stigmatizing thanstops because officers at the checkpoints exercised substantial dis-cretion in singling out which cars to search. 6

These cases provide at least some insight into a theory offunctional border equivalence. In particular, they show that theprobable cause and warrant requirements are necessary for borderzone searches at locations that do not qualify as borderequivalents. Martinez-Fuerte and Ortiz also indicate that such fac-tors as the extent of intrusion, the resulting stigmatization, and therange of official discretion are relevant to fourth amendment analy-sis of searches near the border.

2. Circuit Court Approaches. Despite the dicta in Almeida-Sanchez, as well as the hints given in cases like Ortiz andMartinez-Fuerte, the circuit courts have struggled to interpretwhat the Supreme Court's decisions require for lawful searches

20 Id. at 273.21 428 U.S. 543 (1976).22 A stop is a brief detention for questioning. Id. at 555-56.22 Id. at 559-60; cf. United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975) (reducing

the general probable cause requirement for stops by holding that to stop a vehicle rovingborder patrols need only be aware of specific articulable facts which give rise to a reasonablesuspicion that the vehicle and its contents have entered the country illegally).

24 422 U.S. 891 (1975).25 Id. at 896-98.26 Id. at 895-97.

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near the national borders. Although the case law on the bordersearch exception is well established, the Court's purely historicalapproach to the doctrine leaves it largely unexplained. This hasfrustrated attempts to extend it to border equivalents through rea-soning by analogy. Thus it is unsurprising that the Fifth and NinthCircuits have taken quite different approaches to border zonesearches.

The Fifth Circuit's definition of a functional equivalent of theborder has emerged from a series of cases involving checkpoints inTexas, culminating in United States v. Alvarez-Gonzalez.27 Therethe court identified three relevant factors. First, the searches at achosen location must be sufficiently unintrusive. This means thatthe checkpoint must "'function like a permanent border check-point and not like [a] roving border patrol.' ,,28 Only a permanentcheckpoint provides fair notice and warning of its existence, andreduces the discretion that officials exercise in choosing which trav-elers to stop and search. Second, the ratio between internationaland domestic traffic through the checkpoint must be such that theinterference with domestic traffic is relatively minimal. If the vol-ume of international traffic clearly predominates, all travelers atthe stop can be treated as though they have crossed the border.29

Finally, to be a functional border equivalent, the checkpoint mustapproximate the effect of one located at the border, and thereforemust be capable of monitoring "'portions of international trafficnot otherwise practically controllable.' "o30 This aspect of the testallows the court both to evaluate the need of the government, forreasons of efficiency, to establish a checkpoint in a particular loca-tion and to consider the success of the checkpoint in apprehendingaliens or confiscating drugs.3 1

.7 561 F.2d 620 (5th Cir. 1977). The earlier cases included United States v. Hart, 506F.2d 887 (5th Cir.), vacated and remanded, 422 U.S. 1053 (1975), affd per curiam, 525 F.2d1199 (5th Cir.), cert. denied, 428 U.S. 923 (1976); United States v. Calvillo, 537 F.2d 158(5th Cir. 1976); United States v. Alvarez-Gonzalez, 542 F.2d 226 (5th Cir. 1976). See gener-ally Note, Border Zone Search Law: The Search for a Definition of Functional Equivalentsof the Border, 16 T. INTr'L L.J. 260, 264-71 (1981) (examining several Fifth Circuit cases).

8 Alvarez-Gonzalez, 561 F.2d at 622 (quoting United States v. Alvarez-Gonzalez, 542F.2d 226, 229 (5th Cir. 1976)).

21 561 F.2d at 622-23. For examples of the unrestrictive nature of this requirement, seeinfra note 60.

30 561 F.2d at 624 (quoting United States v. Alvarez-Gonzalez, 542 F.2d at 229).31 In Alvarez-Gonzalez the Fifth Circuit also indicated that the scope of the search is

significant, although it did not consider it a part of the threefold test. Since a full-scalesearch for contraband is more intrusive than a search of the large compartments of an auto-mobile for aliens, authorization for a full-scale search might require a reevaluation ofwhether a checkpoint was a functional border equivalent. See 561 F.2d at 624-25; Hart, 506

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The Ninth Circuit's approach offers a significantly narrowerdefinition of functional border equivalence. In United States v.Bowen,32 the court defined the "function" of the border search asthe regulation of border crossings. 3 The court indicated that itconsidered the examples of functional border equivalents set outby the Supreme Court in Almeida-Sanchez to be nearly exhaus-tive. On this basis the court concluded that functional borderequivalence exists only if the "search takes place at a locationwhere virtually everyone searched has just come from the otherside of the border. 3 4 The court reasoned that since agents exercisediscretion even at fixed checkpoints, the ratio of international traf-fic to domestic traffic should be determinative.3 5

C. A Critique

The Fifth and Ninth Circuits' different approaches to definingfunctional border equivalence indicate a need for a clearer under-standing of the purposes of the border search exception. A purelyhistorical approach, barren of analysis, is too conclusory to supporteither circuit's approach.

To illustrate, take the Fifth Circuit's test. One prong of thattest requires functional border equivalents to have a majority ofinternational traffic. Since history teaches that warrantlesssearches of people who have just crossed the border are per se rea-sonable, it can be argued that the government may conduct a bor-der search at any checkpoint where more than half the traffic isinternational. At that checkpoint, the majority percentage of inter-national traffic would make it more probable than not that any oneperson or car had recently crossed the border.36 This argument

F.2d at 895. Since Alvarez-Gonzalez, however, the Fifth Circuit has abandoned this distinc-tion and included within the scope of permissible searches the routine examination of smallcompartments and luggage by border patrol agents. See United States v. Oyarzun, 760 F.2d570 (5th Cir. 1985); United States v. Dreyfus-de Campos, 698 F.2d 227, 228-29 (5th Cir.),cert. denied, 461 U.S. 947 (1983); United States v. Salinas, 611 F.2d 128, 129-31 (5th Cir.1980); United States v. Warren, 594 F.2d 1046, 1048 (5th Cir. 1979); cf. United States v.Cascante-Bernitta, 711 F.2d 36, 37-38 (5th Cir.) (approving a search by a customs agent atan airport), cert. denied, 104 S. Ct. 252 (1983). This distinction between searches of largeand small compartments is defended infra at notes 90-92 and accompanying text; see alsoUnited States v. Oyarzun, 582 F. Supp. 121, 123 (W.D. Tex. 1984), rev'd, 760 F.2d 570 (5thCir. 1985).

32 500 F.2d 960 (9th Cir. 1974), afl'd on other grounds, 422 U.S. 916 (1975).3 Id. at 965.34 Id. (emphasis added).

Id. at 964-65.30 A similar analysis can be found in the Supreme Court's treatment of "drug courier"

profile cases. Drug courier profiles are a collected group of characteristics that drug enforce-

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would hold that an official has "probable cause" to search everyperson and car, regardless of whether they had in fact just crossedthe border.

This argument is flawed, however, because it fails to take intoaccount the interests of those individuals searched who have notcrossed the border. The border search doctrine stands only for theproposition that, because of the long history of border searches, allsearches at the border are "reasonable" under the fourth amend-ment; it is thus not necessary to consider the balance of public andprivate interests to determine that any search at the border is law-ful. However, because a historical .approach relates only to searchesat the border of individuals who have just crossed the border, itsays nothing about how modern courts should balance governmentand private interests when a considerable number of peoplesearched have not just crossed the border. As the searches moveaway from the border, the government's interest in searching inter-national travelers is diluted by the introduction of traffic that isnon-international, and the resulting balance of interests in anygiven search might be insufficient to support an exception from theprobable cause and warrant requirements.

The Ninth Circuit's approach is no more compelling because itundervalues the government's interest in undertaking certain kindsof searches of international travelers. The fact that traffic at acheckpoint includes a significant number of domestic travelersdoes not eliminate this interest, nor is it clear that the history ofthe fourth amendment allows border searches only if "virtually all"travelers passing through a checkpoint just came from the border.Officials at a more distant near-border checkpoint might be morecertain than not that a traveler had just crossed the border, butthe Ninth Circuit's definition would prevent them from taking ad-vantage of the border search exception to the fourth amendment.Again, because a pure historical approach to the border search ex-

ment agents have found to be common among drug couriers traveling in airports. See Flor-ida v. Royer, 103 S. Ct. 1319, 1339 n.6 (1983) (Rehnquist, J., dissenting). The profile mayinclude such factors as nervous appearance, traveling without luggage, and changing airlinesunnecessarily at a transfer point. See, e.g., United States v. Mendenhall, 446 U.S. 544, 547n.1 (1980); United States v. Elmore, 595 F.2d 1036, 1039 n.3 (5th Cir. 1979) (listing elevenseparate characteristics), cert. denied, 447 U.S. 910 (1980). Although the Court has not di-rectly addressed the use of profiles, a majority apparently would allow them as a method ofestablishing the reasonable suspicion required to initiate an investigatory stop of a drugcourier suspect. See Florida v Royer, 460 U.S. 491, 502 (1983) (plurality opinion of White,J., joined by Marshall, Powell and Stevens, JJ.); id. at 523-25 (dissenting opinion of Rehn-quist, J., joined by Burger, C.J., and O'Connor, J.); United States v. Mendenhall, 446 U.S.544, 563-65 (concurring opinion of Powell, J., joined by Burger, C.J., and Blackmun, J.).

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ception fails to explain the nature or the magnitude of the govern-ment's interest, it provides no basis for assessing this interest oncethe search occurs away from the border.

Therefore it appears that although history is thought to justifyborder searches, it does not aid in establishing their limits. A sta-tistical measure of "probable cause" is meaningless if the underly-ing individual and governmental interests remain unexplained andunmeasured. As a result, the Ninth Circuit's approach errs on theside of requiring too great a governmental interest before estab-lishing functional border equivalence. And although the Fifth Cir-cuit's approach does attempt to weigh individual and governmen-tal interests, at its outer limits it may label checkpoints asfunctional equivalents even though the government's interest is di-luted below the level necessary to justify excepting a search fromfourth amendment safeguards.

II. THE SOVEREIGN INTEREST IN BORDER SEARCHES

As noted previously, even though the Supreme Court now re-lies primarily upon a historical approach to justify the bordersearch exception, this approach does not represent the Court's onlystatements on the subject.37 In several cases, the Supreme Courthas indicated that what in fact lies behind the historical accept-ance of the border search exception is the sovereign interest inmaintaining territorial and national integrity.38

The Supreme Court has recognized that principles of sover-eignty give the federal government plenary power to regulate im-migration. Before The Chinese Exclusion Case,s9 which upheld alaw prohibiting all Chinese from entering the country, the Courtfound authority for congressional control of immigration in the for-eign commerce clause of the Constitution."° But in that case the

37 See supra notes 13-17 and accompanying text.38 See Torres v. Puerto Rico, 442 U.S. 465, 472-73 (1979) (basing the border search

exception in part on the federal government's "inherent sovereign authority to protect itsterritorial integrity"); United States v. Ramsey, 431 U.S. 606, 616 (1977) (border searchesare made "pursuant to the longstanding right of the sovereign to protect itself"); Carroll v.United States, 267 U.S. 132, 154 (1925) (border stops required because of "national self-protection"). This sovereignty rationale has also been recognized by the lower federal courts.See, e.g., Garcia-Mir v. Smith, 766 F.2d 1478, 1484 (11th Cir. 1985) (relaxed constitutionalenforcement at the border based on "the nation's interest in self-determination"); UnitedStates v. Oyarzun, 760 F.2d 570, 574 (5th Cir. 1985) (border search exception justified on thebasis of "sovereign self-protection").

39 Chae Chan Ping v. United States, 130 U.S. 581 (1889).40 Among Congress's enumerated powers are the powers to "regulate commerce with

foreign nations" and to "establish a uniform rule of naturalization." U.S. CONST. art. I, § 8,

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Court declared a more fundamental rationale: "Jurisdiction overits own territory. . . is an incident of every independent nation. Itis a part of its independence. If [a nation] could not exclude aliensit would be to that extent subject to the control of anotherpower." '41 As such, the sovereign's power to exclude foreigners can-not "be granted away or restrained on behalf of any one."4

As these statements indicate, the sovereign's power over immi-gration is extremely broad. It includes the power to exclude onlycertain classes of immigrants, since it is an "accepted maxim ofinternational law, that every sovereign nation has the power, as in-herent in sovereignty, . . . to admit [foreigners] only in such casesand upon such conditions as it may see fit to prescribe."'4 3 Indeed,"[o]ver no conceivable subject is the legislative power of Congressmore complete than it is over the admission of aliens. 44

The sovereign also has an inherent power to regulate foreigncommerce by regulating customs, by enacting duties and tariffs,and by other means.45 The principle of sovereign rights was firstapplied to customs collections in Cross v. Harrison,46 where theCourt stated:

It is very well understood to be a part of the laws of nations,that each nation may designate, upon its own terms, the portsand places within its territory for foreign commerce, and that

cls. 3, 4; see The Head Money Cases, 112 U.S. 580, 591-94 (1884) (reviewing cases establish-ing that Congress has the exclusive power to regulate commerce with foreign nations, in-cluding the transportation of immigrants).

4! The Chinese Exclusion Case, 130 U.S. at 603-04, quoted in Almeida-Sanchez v.United States, 413 U.S. 266, 291 (1973) (White, J., dissenting).

"2 130 U.S. at 609. For a criticism of such an absolute vision of this power, see Note,Constitutional Limits on the Power to Exclude Aliens, 82 CoLum. L. REv. 957 (1982).

43 Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892); see also Act of March 3,1875, ch. 1, § 5, 18 Stat. 477, 477-78 (the first federal immigration statute, which excludedonly prostitutes and convicts); 2 EMMERICH DE VATTEL, LAW OF NATURE AND NATIONS §§ 94,100 (4th ed. London 1811) (1st ed. London 1758) (the right to prohibit or condition entranceinto a territory stems from the rights and domain of sovereignty).

44 Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) (quoting Oceanic Navigation Co. v.Stranahan, 214 U.S. 320, 339 (1909)).

This broad power was also noted in the Eleventh Circuit's recent opinion in Garcia-Mirv. Smith, 766 F.2d 1478 (11th Cir. 1985). There, the court rejected the claims of the "MarielBoatlift" Cubans that they possessed constitutional rights that were infringed by their con-tinued detention, and held that the "contours" of the Cubans' rights were largely left tolegislative discretion. The court stated: "As the history of its immigration policy makesclear, this nation has long maintained as a fundamental aspect of its right to self-determina-tion the prerogative to determine whether, and in what numbers, outsiders without anycognizable connection to this society shall be permitted to join it." Id. at 1484.

45 See supra note 11.46 57 U.S. (16 How.) 164 (1853).

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any attempt to introduce foreign goods elsewhere, within itsjurisdiction, is a violation of its sovereignty.47

The powers to control immigration and foreign commerce aremembers of a class of similar powers that inhere in the sovereignnature of the federal government even though they are not enu-merated in the Constitution.48 In the classic case, United States v.Curtiss-Wright Export Corp.,49 the Court acknowledged that cer-tain powers necessary to the sovereignty of a nation had not beenspecifically delegated to the federal government by the Constitu-tion.50 It then noted that since the states themselves were neversovereigns possessing external foreign powers, they could not havebeen the source of the federal government's external powers.Rather, the powers of external sovereignty are inherent andunenumerated powers that passed to the federal government fromthe British Crown via the confederation government.51 The Courthas indicated that this class of unenumerated powers may be exer-cised as broadly as the other powers expressly granted to the fed-eral government.

52

17 Id. at 196; see also 1 E. VATML, supra note 43, §§ 90, 92 (sovereign states, as ofnatural right, may prohibit and regulate their foreign commerce).

48 See, e.g., Schuck, The Transformation of Immigration Law, 84 COLUM. L. REV. 1, 18-

21 (1984) (extraconstitutional nature of exclusion power); Note, supra note 42, at 966-74(same).

49 299 U.S. 304 (1936).50 Id. at 318. Examples of other unenumerated powers include the power to recognize

foreign governments and the power to acquire territory by treaty. See generally Louis HEN-KIN, EpREIGN AFFAIRS AND THE CONSTITUTION, 16-17 (1972).

' Curtiss-Wright, 299 U.S. at 315-17. Although the historical basis of the view that thestates were never individual sovereigns has been strongly criticized, see, e.g., HENKIN, supranote 50, at 284 n.10; Note, supra note 42, at 969-74 and authorities cited therein, the doc-trine of extratextual foreign powers remains authoritative, see Perez v. Brownell, 356 U.S.44, 57 (1958) ("The States that joined together to form a single Nation and to create,through the Constitution, a Federal Government to conduct the affairs of that Nation mustbe held to have granted that Government the powers indispensable to its functioning effec-tively in the company of sovereign nations."), overruled on other grounds, Afroyim v. Rusk,387 U.S. 253 (1967); United States v. Glasser, 750 F.2d 1197, 1200 (3d Cir. 1984) (catego-rizing the right to regulate the border as an inherent power of sovereignty which passed tothe United States upon the cessation of the exercise of sovereignty by Great Britain).

52 Where sovereign powers do not infringe on the rights of American citizens the Courthas found virtually no limit to their exercise. For example, the Court has recognized that thepower to acquire territory by treaty, a nontextual power, includes the power to negotiatetreaties whose provisions, if applied to the states rather than to the territories, would beunconstitutional. See Downes v. Bidwell, 182 U.S. 244, 253-57 (1901); id. at 345-46 (Gray, J.,concurring). But see id. at 288-89 (White, J., concurring). The Court has treated the powerto acquire territory by treaty or war as practically absolute. See American Ins. Co. v. Canter,26 U.S. (1 Pet.) 511, 542 (1828); cf. Missouri v. Holland, 252 U.S. 416, 433 (1920) (rulingthat treaty provisions are not subject to the same tenth amendment restrictions as acts ofCongress since the power to deal by treaty with matters requiring national action is one

1130 [52:1119

19851 Fourth Amendment Border Equivalents 1131

When applied to the fourth amendment, the notion of sover-eign powers makes sense of the border search exception. The fed-eral government's power over immigration and foreign commerce isimmense, and the nation's border is the primary locus at whichthat power must be exercised. The border search exception shouldbe seen as recognizing that the government's sovereign interests atthe actual border are so strong that they always outweigh the indi-vidual's privacy and autonomy interests in avoiding "unreasona-ble" searches. 3 It is not obvious, however, that sovereign interestsso clearly outweigh individual interests when the searches occuraway from the border and may include individuals who have notjust crossed the border. Functional border equivalence, then, be-comes a matter of determining how those competing interestschange away from the actual border.

which must "'somewhere reside in every civilized government' ") (quoting Andrews v. An-drews, 188 U.S. 14, 33 (1903)). But cf. Reid v. Covert, 354 U.S. 1, 16 (1957) (holding that notreaty can "confer power . . . on any . . . branch of government which is free from therestraints of the constitution").

Even when the exercise of the sovereign power may infringe on the rights of Americancitizens, so long as the infringement occurs outside the United States the sovereign right hasnot been greatly limited. Thus, the Court has upheld Congress's power to institute taxationschemes for the territories which would be unconstitutional if applied to the states. See, e.g.,Cincinnati Soap Co. v. United States, 301 U.S. 308, 323 (1937); Downes v. Bidwell, 182 U.S.244, 287 (1901). Congress may also determine the status of territorial inhabitants, seeRabang v. Boyd, 353 U.S. 427, 432 (1957); Downes, 182 U.S. at 279, possibly denying themsome of the protections of the Bill of Rights, see Downes, 182 U.S. at 277, 283. But see, e.g.,Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982) (extending constitutional votingrights protection to Puerto Rican citizens). In addition, the Court has gone so far as to deemthe power to govern territories acquired by treaty or conquest has been deemed to includethe right to govern the reconstructed states so as to prevent a recurrence of insurrection.See Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 506 (1870). In Stewart, a provision of an expost facto federal statute that abrogated Louisiana's statute of limitations was upheld as anexercise of the war power, though it bore no clear relation to the prevention of rebellion. Id.

53 Several commentators have argued that the fourth amendment's warrant require-ment should apply to intrusive body searches at the border, see, e.g., Note, Bags to BodyCavities, supra note 1, at 82-87, but none has gone so far as to suggest that the bordersearch exception itself be done away with. However, other fourth amendment doctrineswhose original justifications gradually were submerged in favor of a historical argumenthave not been immune to Supreme Court reappraisal. See, e.g., Camara v. Municipal Court,387 U.S. 523, 528-34 (1967) (requiring administrative search warrants), overruling Frank v.Maryland, 359 U.S. 360 (1959) (which approved warrantless administrative searches on his-torical grounds); cf. Katz v. United States, 389 U.S. 347, 351-53 (1967) (approving fourthamendment protection of phone conversations), altering Olmstead v. United States, 277U.S. 438 (1928) (which limited the scope of fourth amendment protection to objects withinthe historical trespass doctrine). This comment's recognition of an underlying sovereigntyrationale precludes such a reappraisal of the border search exception.


III. APPLYING THE SOVEREIGNTY RATIONALE TO FUNCTIONAL

BORDER EQUIVALENTS

A. The Special Problem of Distant Border Searches

In order to determine how a sovereignty-based approach toborder searches relates to functional border equivalence, it is use-ful to classify near-border searches into two categories: virtual bor-der searches and distant border searches. A virtual border searchoccurs at a location through which all or almost all of the traffichas just crossed the border. A distant border search occurs at alocation where a significant portion of the traffic has just crossedthe border. These two categories correspond to the tests adoptedby the Ninth and Fifth Circuits, respectively.

With regard to virtual border searches, the recognition thatthe government's border interests are sovereignty-based indicatesthat these searches, like actual border searches, should be exemptfrom fourth amendment requirements. The circumstances at a vir-tual border are nearly identical to those at the actual border. 4 Be-cause practically all the people searched at the virtual border havejust crossed the border, the sovereign has the same interest insearching them as it would if the searches were conducted at theactual border.5 5 A virtual border search, in fact, is almost identicalto the international flight example used by the Supreme Court inAlmeida-Sanchez.

In contrast, the overinclusiveness of distant border searches,which results from the significant amount of non-internationaltraffic, changes the fourth amendment balance in two ways: it di-lutes the government's interest in a search of any given individual,and it increases the possibility and extent of damage to an individ-

54 Virtual border searches are by definition confined to areas where there are virtuallyno searches of noninternational travelers. Such a variation from the conventional concept ofborder searches can only be considered de minimis. Even the more restrictive Ninth Circuithas readily recognized that the factors involved in border searches change very little if thesearch is conducted close to the border. See supra notes 32-35 and accompanying text.

55 This is also the case when surveillance establishes with reasonable certainty that aparticular vehicle has crossed the border and has not since had an opportunity to load orunload. In such cases, courts have permitted a search of the vehicle without a warrant orprobable cause as if it had been stopped at the border. See, e.g., Alexander v. United States,362 F.2d 379, 382 (9th Cir.), cert. denied, 385 U.S. 977 (1966); cf. United States v. Brennan,538 F.2d 711, 721 (5th Cir. 1976) (allowing search of plane after surveillance following bor-der crossing), cert. denied, 429 U.S. 1092 (1977). Failure to maintain surveillance defeats thepresumption that conditions in the vehicle have not changed. See, e.g., Contreras v. UnitedStates, 291 F.2d 63, 65 (9th Cir. 1961). But see United States v. Terry, 446 F.2d 579, 581-82(9th Cir.), cert. denied, 404 U.S. 946 (1971) (allowing brief breaks in surveillance); Alexan-der, 362 F.2d at 582-83 (same).

1132 [52:1119


dal's privacy and autonomy interests resulting from the search. 6

Clearly, the government's interest in any one search at a distantborder checkpoint is lower than at a virtual border checkpoint. Ata distant border, agents can hardly avoid searching many domestictravelers in whom the government has no special sovereignty-related interest whatsoever.

Moreover, the negative effects of government intrusions uponindividuals are greater at distant border locations than at an actualborder. Actual borders have an international legal status" thatputs travelers on notice that searches are likely to be made. Thisnotice diminishes the travelers' expectation of privacy and maymake it reasonable to presume that they implicitly have consentedto a warrantless search upon their reentry into the country.5 8 Theexpectation that a search may occur also makes border searchesless insulting and stigmatizing, thereby mitigating the injury theycause. 59

Unlike actual borders, however, distant border equivalentshave no international legal status. Distant checkpoints may be setup at sites where a substantial number of the people passingthrough the checkpoint have not crossed the international bor-der.6 0 These distant checkpoints do not clearly give notice thatlimited warrantless searches may occur. Travelers who have notcrossed the border thus cannot be thought to have given their im-plied consent to warrantless searches merely by traveling near theborder.61 When singled out for search the individual may feel in-

56 See supra text following note 36 and text accompanying note 28.

See BERNARD GILSON, THE CONCEPTUAL SYSTEM OF SOVEREIGN EQUALITY 181-84(1984); see also United States v. Ramsey, 431 U.S. 606, 616 (1977) ("searches made at theborder, pursuant to the long-standing right of the sovereign to protect itself. . . are reason-able simply by virtue of the fact that they occur at the border"). See generally B. GLSON,

supra, at 151-181 (discussing the concept of a border)." See Note, Almeida-Sanchez and its Progeny: The Developing Border Zone Search

Law, 17 ARiz. L. REV. 214, 238 n.149 (1975). See generally Schneckloth v. Bustamonte, 412U.S. 218, 222-27 (1973) (setting forth the basic doctrine that consent is an exception to theneed for a warrant).

59 Note, Border Searches, supra note 1, at 1012."0 In United States v. Alvarez-Gonzalez, 561 F.2d 620 (5th Cir. 1977), for example, the

fact that only 60% of the traffic was international was nonetheless sufficient to establish"minimal interference with domestic traffic" within the Fifth Circuit's test. Id. at 623. InUnited States v. Luddington, 589 F.2d 236 (5th Cir.), cert. denied, 441 U.S. 936 (1979), thecourt held that a checkpoint was a functional border equivalent even though no statisticalevidence as to the percentage of international traffic was presented and despite the conces-sion that "as a matter of sheer volume, the effect of the checkpoint on domestic traffic [was]significant." Id. at 241.

6' See Almeida-Sanchez v. United States, 413 U.S. 266, 281 (1973) (Powell, J., concur-ring) ("One who merely travels in regions near the borders of the country can hardly be

19851 1133


sulted and stigmatized, since the selection often will not reflect jus-tified suspicion.

In sum, when viewed in light of the government's strong sover-eign interests, warrantless searches at virtual border equivalentsseem permissible, and indeed can sensibly be categorized as fallingwithin the border search exception itself. But searches at distantborder checkpoints present special problems because of their over-inclusiveness. A theory of functional border equivalence must bal-ance the negative effects of this overinclusiveness against the sov-ereign's special interests in conducting such searches.

B. An Analogy to Administrative Searches

Because neither the Supreme Court nor any other court hasrigorously analyzed functional border equivalence in light of sover-eign national interests, it is appropriate to look elsewhere in fourthamendment law to find a framework for balancing the competingindividual and governmental interests. Such a framework can befound in the Court's decisions relating to administrative searches.In that area the Court has created a category of intermediatefourth amendment protection for searches that are overinclusivebut effectuate strong government interests.

In Camara v. Municipal Court,62 the Court ruled that a war-rant is generally required for searches made by government offi-cials to determine compliance with administrative regulations.63

Although the Court acknowledged that administrative searcheswere a less hostile intrusion than a typical police search for crimi-nal evidence, it reasoned that the public interest in regulatinghealth and safety did not justify dispensing with the need for awarrant.6 4 Only if requiring a warrant would "frustrate the govern-mental purpose behind the search" may officials conduct adminis-trative searches without a warrant.6 5

Consideration of the public interest did, however, lead theCourt to relax the probable cause requirements that must be satis-

thought to have submitted to inspections in exchange for a special perquisite."); cf. Shapirov. Thompson, 394 U.S. 618, 629-31 (1969) (reaffirming the right to freedom of travel withinthe United States).

2 387 U.S. 523 (1967).63 Id. at 534. Administrative searches involve inspections for the purpose of determin-

ing compliance with a "regulatory scheme for the general welfare of the community." Frankv. Maryland, 359 U.S. 360, 367 (1959).

387 U.S. at 530-33."8 Id. at 533.

1134 [52:1119


fled before an administrative search warrant could be issued. 68

General area inspection warrants could be issued upon "probablecause" standards that are less stringent than those required to ob-tain a warrant for a criminal search.67 The standard of probablecause for any given search was held to vary with the nature of theregulatory program. 8

The Court justified this modified warrant system by its assess-ment of the magnitude of governmental and individual interestspeculiar to administrative searches. The Court found the govern-ment's interest in such searches to be unusually strong. This inter-est was illustrated by the historical, judicial, and public acceptanceof the practice of administrative inspections, and by general no-tions that the public interest is served by their performance.69 Theextent of intrusion on the individual, on the other hand, was foundto be fairly low. These searches create a largely impersonal inva-sion and are not aimed at uncovering evidence of crime.70

Camara marks the fourth amendment protections required atone point on a continuum that balances individual and governmen-tal interests. In other cases the Court has created limited excep-tions to Camara's general warrant system where the governmentalinterest involved was particularly strong and the type of intrusioncaused by the search especially slight. If the inspections are regularand certain, pervasively monitored, or such that a warrant require-ment would frustrate legitimate government enforcement goals, nowarrant is required. 71

e Id. at 534-39.67 Id. at 538. Area warrants permit the general inspection of all places or things speci-

fied within a geographical region, "based on [an] appraisal of conditions in the area as awhole, not on . . . knowledge of [the] conditions of each particular" place or thing. Id. at536. But see See v. City of Seattle, 387 U.S. 541, 552-55 (1967) (Clark, J., dissenting). Forexample, the Court suggested in Camara that the mere passage of time without inspectionmight be sufficient to justify the issuance of a warrant. 387 U.S. at 538.

68 387 U.S. at 538.69 Id. at 537.70 Id.7' These exceptions are gleaned from a relatively unclear line of Supreme Court cases

following Camara. In Colonnade Catering Corp. v. United States, 397 U.S. 72, 77 (1970), forexample, the Court emphasized that because the liquor business was an industry long sub-ject to regulation and licensing requirements, Congress had broad power to specify the kindsof warrantless inspections that would be permitted. In contrast, in United States v. Biswell,406 U.S. 311, 315 (1972), the Court upheld a warrantless inspection of a federally licensedgun dealer even though there was no strong history of federal regulation. The Court insteadstressed a consent rationale, arguing that "[w]hen a dealer chooses to engage in [a] perva-sively regulated business . . . he does so with the knowledge that [he] will be subject toeffective inspection." Id. at 316. In Marshall v. Barlow's, Inc., 436 U.S. 307, 324-25 (1978),however, the Court held that industrial inspections by the Occupational Safety and Health

1985] 1135

1136 The University of Chicago Law Review [52:1119

In addition to relaxed probable cause requirements, the ad-ministrative search doctrine also acknowledges that some searchwarrants may be issued even though the object of the search is notdescribed with the particularity normally required by the fourthamendment. In the administrative search area, if the public inter-est is strong enough, the intrusion upon individuals minimal, andthe major purpose of the search is not to expose individuals tocriminal prosecution, then the Court will approve a general areasearch warrant that is overinclusive in order to promote the effi-cient enforcement of the government's regulatory plans. 72

C. The Administrative Search and the Distant Border

Applying administrative search jurisprudence to distant bor-der searches requires an examination of the interests of the sover-eign and the individual. The relative weight of these interests willvary with the purpose and the intrusiveness of the search. Thisvariation means that functional border equivalence should be de-fined in the context of particular kinds of searches.

1. Distinguishing Immigration and Customs Searches. Thegovernment stops and searches individuals at border zone check-points primarily for two purposes: to enforce the immigration lawsand to enforce the customs laws . 3 But the government's interests

Administration (OSHA) could not be conducted without a warrant. The Court explainedthat the Colonnade and Biswell exceptions were limited to those industries which were bothpervasively regulated and had a long tradition of government supervision. The rationale forthese exceptions was that only participants in an activity which is widely and historicallyregulated can be deemed to have given their implied consent to the warrantless inspection.Id. at 313-14. In a further shift of emphasis, the Court in Donovan v. Dewey, 452 U.S. 594,603-06 (1981), permitted the warrantless inspection of mines by federal officials, and empha-sized the certainty and regularity with which the searches occurred. The Court indicatedthat the flaw of the OSHA regulation in Marshall was that, unlike the mine inspectionstatute in Donovan, it gave too much discretion to the OSHA inspectors to determine whenand whom to search. Id. at 601.

"2 Camara, 387 U.S. at 537; see Pennsylvania v. Mimms, 434 U.S. 106, 121 n.11 (1977)(Stevens, J., dissenting) (noting that regulatory searches and border searches are the twobest known exceptions to the particularity requirements of the fourth amendment); UnitedStates v. Davis, 482 F.2d 893, 908 (9th Cir. 1973) ("The essence of these decisions [of theSupreme Court] is that searches conducted as part of a general regulatory scheme in fur-therance of an administrative purpose, rather than as part of a criminal investigation tosecure evidence of crime, may be permissible under the Fourth Amendment though notsupported by a showing of probable cause directed to a particular place or person to besearched.").

73 "Immigration law" is used to mean the body of law governing the admission anddeportation of aliens, and should be distinguished from the more general law of aliens'rights and obligations. See Legomsky, Immigration Law and the Principle of Plenary Con-gressional Power, 1984 Sup. CT. REv. 255, 256. "Customs law" is used to mean the body of


differ in the two contexts.The government has a fundamental interest in enforcing its

immigration laws through border-zone searches. Immigration lawsare uniquely important because a state is defined by its membersand their agreement to form it.74 Membership in a specific commu-nity or state is the "central concept of politics"; 5 the identity ofthe members of a community is critical to the political embodi-ment of that community.7"

Recognition of the critical nature of the sovereign's interest inimmigration is evident in early English common law. In Calvin'sCase 7 it was recognized that a person born alien could be made asubject only by the "denization" of the King. The power to grantcitizenship was considered so inextricably bound up with the sov-ereign's high prerogative that it could not be delegated. 8

This conception of citizenship and nationality carried overinto the late eighteenth century, when European philosophers at-tempted to categorize the natural law. Vattel argued that the rightto prohibit entry into the country stemmed directly from the rightsand domain of the sovereign.7 e This domain included the right tocondition entry of an alien in any manner the sovereign saw fit.s0

law regulating the admission of goods and articles into the country. See United States v.Ramsey, 431 U.S. 606, 616-619 (1977).

7' See LOCKE, SECOND TREATISE OF GOVERNMENT 63 (C. Sherman ed. 1937) (1st ed.London 1658) (the only way whereby anyone may divest himself of his natural liberty andjoin a civil society is by "agreeing with other men to join and unite in a community [andthereby] make one body politic"); P. SCHUCK & R. SMITH, CITIZENSHIP WITHOUT CONSENT.ILLEGAL ALIENS IN THE AMERICAN POLITY 22-31 (1985); cf. ARISTOTLE, NICOMACHEAN ETHICSBk. VIH, chs. i, ix (Browne trans. London 1853) (discussing the importance of unanimityand friendship for success of community).

71 Friedrich, The Concept of Community in the History of Political and Legal Philoso-phy, in COMMUNIrY 20 (Nomos No. 2, C. Friedrich ed. 1959); ARISTOTLE, POLITICS, Bk. III,ch. iii, §§ 7-12 (Barker trans. 1946) (basic identity of polis defined by its membership).

7 Many of the framers were troubled by the problem of maintaining an essential homo-geneity in the growing population of the nation. See, e.g., THE FEDERALIST No. 2, at 38-39 (J.Jay) (C. Rossiter ed. 1961); THOMAS JEFFERSON, NOTES ON THE STATE OF VMrGINI, QueryVIII, at 83-85 (W. Peden ed. 1954). See generally ALFmUS DE TOCQUEVILLE, DEMOCRACY INAMERICA 32-40 (J. Mayer ed. 1969) (discussing common features and differences among theearly American colonists).

1 77 7 Coke Rep. la, 77 Eng. Rep. 377 (1608). For an in-depth analysis of Calvin's Case,see P. SCHUCK & R. SMITH, supra note 74, at 12-17.

78 Calvin's Case, 7 Coke Rep. at 18a, 25b. Sovereign control of immigration may also beaccomplished by statute. In 1645, Massachusetts passed the first American immigration lawprohibiting the immigration of the indigent and poor. EDWARD P. HUTCHINSON, LEGISLATIVEHISTORY OF AMERICAN IMMIGRATION POLICY 1798-1965, at 390 (1981). The Supreme Courthas since ruled that the Constitution preempts state regulation or taxation of immigrants.Chy Lung v. Freeman, 92 U.S. 275, 280 (1875).

7' See E. VATTEL, supra note 43, § 94.80 Id. § 100.

1985] 1137


The power of exclusion was particularly important because, uponthe alien's entry, the sovereign undertook the duty to protecthim.8' Thus, according to natural law theorists, the sovereign hadto consent to the undertaking of his natural law obligations; theycould not be thrust upon him. 2

The practice of international law has followed this natural lawconception of sovereign powers. Roman citizenship could be ex-tended only by edict of the sovereign. 3 Similarly, modern interna-tional law tribunals have followed the principle that a state has thepower to declare who are its nationals.8 4 This includes the power todeny foreigners the right to enter the country. Since it is throughthe standard of nationality that the granting of rights and the un-dertaking of binding obligations by a state is measured interna-tionally, the conveyance of citizenship lies wholly within the do-mestic jurisdiction of each state.8 5

The importance of the sovereign interest in immigration isalso evident in the great deference that the Supreme Court hasaccorded the federal government's power over immigration. TheCourt has held that regulation of immigration is solely a federalpower,"6 and has allowed the federal government latitude to take

81 Id. § 104.82 See 2 JEAN JACQUES BURLAMAQUI, THE PRINCIPLES OF NATURAL AND POLITIC LAW 31

(5th ed. Cambridge 1807) (1st ed. Geneva 1748); cf. 2 SIR ROBERT J. PHILIMORE, COMMEN-TARIES UPON INTERNATIONAL LAW 3-7 (3d ed. 1882); United States v. United States DistrictCourt, 407 U.S. 297, 312 (1972) (discussing sovereign duties in the law enforcement context,the Court stated, "unless Government safeguards its own capacity. . . to preserve the se-curity of its people. . . all rights and liberties would be endangered.. . . 'Civil liberties...imply the existence of an organized society maintaining public order.' ") (quoting Cox v.New Hampshire, 312 U.S. 569, 574 (1971)).

83 See B. GILSON, supra note 57, at 105. The Roman law of jus gentium is generallyrecognized as the source of modern international law. Id. at 7-8.

84 Id. at 107; see Nationality Decrees in Tunis and Morocco, 1923 P.C.I.J., ser. B, No. 4(Advisory Opinion of Feb. 7).

85 Nottebohm Case (Liechtenstein v. Guatemala) 1955 I.C.J. 4, 20 (Judgment of Apr. 6)("it is for every sovereign State to settle ... the rules relating to acquisition of its national-ity, and to confer that nationality ... by its own organs").

88 Chy Lung v. Freeman, 92 U.S. 275, 280-81 (1875). The Court has also acknowledgedthe greater federal power over aliens' rights and obligations. Whereas state restrictions onwelfare payments, Graham v. Richardson, 403 U.S. 365, 376 (1971), or state public employ-ment, Sugarman v. Dougall, 413 U.S. 634, 641-46 (1973), available to aliens have been foundto violate the equal protection clause of the fourteenth amendment, the Court in Mathewsv. Diaz, 426 U.S. 67, 78-80 (1976), expressly acknowledged Congress's power to make rulesconcerning aliens that would be unacceptable if applied to citizens. Mathews upheld a rulewhich denied Medicare benefits to aliens who had not been admitted to and resided in theUnited States for five years. Id. at 83-87. Similarly, while states may only limit the publicemployment of aliens in those instances where the special demands of the position requirecitizenship, see Sugarman, 413 U.S. at 647, in Hampton v. Mow Sun Wong, 426 U.S. 88(1976), the Court acknowledged in dicta that the "paramount federal power over immigra-

[52:11191138

1985] Fourth Amendment Border Equivalents 1139

certain actions in the immigration context that would not be al-lowed in other contexts.87

In comparison to this sovereign interest in immigration, thegovernment's interest in customs enforcement appears less funda-mental. Customs regulation controls only the objects that enter thenation's geographical boundary; immigration control enforces theidentity of citizenship which makes the geographical boundarymeaningful in the first place. Because citizenship "defines" thesovereign in a democracy, the very power to make decisions aboutcustoms control depends upon an enforceable definition of citizen-ship. Perhaps in recognition of this, the Supreme Court has en-sured the federal government an almost limitless monopoly overthe admission of aliens,88 while it has not been so troubled by statecustoms regulations."9 Though both immigration and customs law

tion ...forecloses a simple extension" of the prohibition applied to the states and that"overriding national interests may provide a justification for a citizenship requirement inthe federal service even though an identical requirement may not be enforced by a State."Id. at 100-01.

87 In Fiallo v. Bell, 430 U.S. 787, 791-92 (1977), the Court held that Congress could givea preference in immigration to illegitimate children whose mothers were citizens withoutgiving a similar preference based on the father's citizenship. Such a distinction, if applied tocitizens outside the immigration context, would surely be invalidated on equal protectiongrounds. Cf. Stanley v. Illinois, 405 U.S. 645 (1972) (striking down an Illinois law that pre-sumed the parental unfitness of unwed fathers but not that of unwed mothers). Addition-ally, in Kleindienst v. Mandel, 408 U.S. 753, 767-70 (1972), the Court upheld the govern-ment's decision to deny a visa to a journalist because of his Marxist views, despite itsrecognition that the denial implicated the first amendment interests of American citizenswho wished to meet with the journalist. See also supra note 44 and accompanying text.

Although one commentator recently has criticized this "special deference [the Court]has accorded Congress in the field of immigration," Legomsky, supra note 73, at 255, theCourt has not deviated from its deferential policy. Another author draws tangential supportfor the belief that Congress's immigration powers are waning slightly from the SupremeCourt's recent decision in Plyler v. Doe, 457 U.S. 202 (1982), which invalidated a state stat-ute that denied free public education to the children of undocumented aliens. See Schuck,supra note 48, at 54-58. This reliance is misplaced, however, since the Court in Plyler did nomore than invalidate a state statutory limitation on aliens, while it cited with approval Ma-thews v. Diaz, 426 U.S. 67 (1976), and continued to acknowledge Congress's plenary powerover the immigration field. Plyler, 457 U.S. at 210-26.

88 See supra note 86 and text accompanying note 44.89 In Frank v. Maryland, 359 U.S. 360, 367-73 (1959), the Court noted the long history

of state and local customs regulations. Other courts have also recognized the states' cus-toms powers. In rejecting a fourth amendment challenge to a search conducted at an inspec-tion station, the California Court of Appeals did not draw any distinction between federaland state authority to conduct customs border searches. See People v. Dickinson, 104 Cal.App. 3d 505, 509-13, 163 Cal. Rptr. 575, 577-79 (1980) (approving a search conducted pursu-ant to state law when the defendant complied with a request that he open his trunk); cf.State v. Bailey, 120 Ariz. 399, 401, 586 P.2d 648, 649-50 (Ct. App. 1978) (approving a similarstop and search by a quarantine inspector at an agricultural inspection station pursuant toArizona law). A state's control over the goods that cross its borders (so long as such control


arise out of the sovereign power of a nation to control its borders,the control of immigration emerges as a significantly more impor-tant aspect of that power.

With regard to individual interests recognized by the Camaraframework, immigration searches are also less intrusive than cus-tons searches. At one time, the Fifth Circuit determined thatsearches of luggage and compartments too small to hold illegalaliens represented a "more serious interference [which] could wellresult in the striking of a different balance in determining a check-point's status as the functional equivalent of the border, since thedegree of intrusion clearly bears on that status."90 This distinctioncorrectly recognized the difference between immigration searchesof large impersonal areas, such as the trunk of a car, and customssearches of smaller, more intimate places like a glove compartmentor a piece of luggage. The nature of the objects kept in the respec-tive places differs substantially.91 Although the Fifth Circuit hasabandoned this distinction,92 it should be revived within the

does not interfere with interstate commerce), is as much an aspect of the state's sovereigntyas it is of the federal government's. But see, e.g., Washington State Bldg. & Constr. TradesCouncil v. Spellman, 684 F.2d 627 (9th Cir. 1982) (holding that a state restriction on thetransportation of nuclear waste violates the commerce and supremacy clauses), cert. denied,461 U.S. 913 (1983).

Examples of states exercising customs power abound. See, e.g., N.Y. VEH. & TRAP. LAW§ 385(1)-(16) (McKinney 1979) (authorizing state inspection of vehicles entering the state toensure that they satisfy size and weight regulations); FLA. STAT. § 601.29(2) (West Supp.1985) (authorizing state inspectors to enter and examine vehicles for compliance with citruspacking regulations). Perhaps the one incident in which a state exercised a power mostclosely parallel to the national customs power was California's use of a quarantine in thewake of the Mediterranean fruit fly outbreak. California law authorizes the state to establisha quarantine and enforce it by maintaining inspection stations. CAL. FOOD & AGRIC. CODE

§§ 5301, 5341 (West 1968). Failure to stop and present any plants or quarantined itemsupon request is unlawful. Id. at §§ 5344, 5346 (West 1968 & Supp. 1985).

90 United States v. Alvarez-Gonzalez, 561 F.2d 620, 625 (5th Cir. 1977); see also United

States v. Hart, 506 F.2d 887, 895 (5th Cir.), vacated and remanded, 422 U.S. 1053 (1975),aff'd per curiam, 525 F.2d 1199, cert. denied, 428 U.S. 923 (1976).

"' This distinction is not exact. Some drugs, such as large bales of marijuana, may beconcealed only in large compartments of an automobile. It is, however, unlikely that a glovecompartment will conceal an illegal alien. Cf. United States v. Chadwick, 433 U.S. 1, 12-13(1977) (holding that lower expectations of privacy attach to an automobile than to personalluggage). A useful analogy may be drawn to the use of an arrest warrant to search a housefor a criminal suspect. The search permitted under the arrest warrant is limited to largeareas where the suspect may be hiding and does not include personal containers or drawers.See, e.g., Chimel v. California, 395 U.S. 752 (1969).

92 See supra note 31 and accompanying text. This probably reflects the Fifth Circuit'sunderstanding that the government's interest in permitting customs searches is the same asits interest in permitting immigration searches. See supra note 30 and accompanying text.To the extent that the Fifth Circuit's abandonment of the distinction rests on this belief, itis flawed. See supra notes 73-89 and accompanying text. Nothing precludes the Fifth Circuit

1140 [52:1119


framework of the administrative search analogy.In addition, immigration and customs searches differ with re-

spect to the severity of the possible consequences of the search.Violations of the customs laws carry clear criminal penalties.93 In-deed, a common customs violation, possession of narcotics, fre-quently results in stiff jail sentences.94 In contrast, the primarysanction for violations of federal immigration laws is deportation, 5

which has long been considered a civil punishment and not a crim-inal sanction.96

In sum, the balance of governmental and individual interestsdiffers considerably in the contexts of immigration and customssearches. Immigration searches, unlike customs searches, exhibitcharacteristics analogous to the factors developed in Camara,which justified lower fourth amendment standards for nonparticu-larized, overinclusive administrative searches: they further a fun-damental government interest, are not overly intrusive, and in thevast majority of cases result only in civil punishment. This sug-gests that immigration searches at distant border equivalentsshould be exempt from the full probable cause requirements of thefourth amendment, while customs searches at distant borderequivalents should receive no such special treatment.

2. Warrants for distant border searches. Application of theadministrative search analogy to immigration searches at distantborder equivalents also suggests that no distant border search

from adopting a sovereignty interest rationale and reinstituting a distinction between immi-gration searches of large spaces and customs searches of small spaces.

93 See, e.g., 18 U.S.C § 541 (1982) (up to two-year prison term for entry of falsely classi-fied goods); id. § 545 (up to five-year prison term for smuggling).

$, The two states whose checkpoints have been most closely examined by the courts,Texas and California, have particularly harsh laws. See, e.g., TEXAs STAT. ANN. art. 4476-15,§ 4.03 (Vernon Supp. 1985) (up to life imprisonment for sale of specified quantities of cer-tain controlled substances); CAL. HEALTH & SAFETY CODE, § 11352(a) (West Supp. 1985)(five-year to life prison term for sale of specified controlled substances).

"s Federal law provides for deportation of illegal aliens, 8 U.S.C. §§ 1227, 1252 (1982),and criminal sanctions against both illegal aliens, id. §§ 1325-26, and those who transportthem into the country, id. §§ 1321-24, 1327-28. Of the more than 1.1 million people appre-hended for violating the immigration laws in 1983, however, only 16,493 were prosecuted,less than 2% of those arrested. STATIsTIcAL ABSTRACT OF THE UNrTED STATES, supra note 4,at 90-91. The ensuing 11,233 convictions resulted in aggregate fines of $503,000 and impris-onment for a total of 5,451 years. Id. at 90. Thus, on average, a successful prosecution re-sulted in a punishment of a $50 fine and 6 months imprisonment.

9' See Ingraham v. Wright, 430 U.S. 651, 668 (1977); Bugajewitz v. Adams, 228 U.S.585, 591 (1913) (Holmes, J.) (deportation is not a "punishment; it is simply a refusal by theGovernment to harbor persons whom it does not want"). But see Harisiades v. Shaughnessy,342 U.S. 580, 600 (1952) (Douglas, J., dissenting) (likening deportation to banishment);Schuck, supra note 48, at 24-27 (contending that deportation is not merely a civil penalty).

1985] 1141


should be allowed unless it is authorized by an area search war-rant.9 7 Administrative search warrants may only be dispensed withwhen inspections are regular and certain, where they are made inareas of pervasive regulation, or where a warrant requirementwould frustrate enforcement goals.98 An examination of searches atdistant equivalents of the border indicates that they do not fallwithin any of these exceptions: searches at distant border check-points are irregular and uncertain, only a small percentage of peo-ple at each checkpoint are searched,99 many distant border stationsare not permanently manned, and decisions about whom and whento search necessarily involve considerable discretion by border pa-trol agents. 100

97 In Almeida-Sanchez v. United States, 413 U.S. 266, 270-72 (1973), the Court rejectedthe contention that the administrative search doctrine supported the constitutionality ofwarrantless roving border patrol searches. The Court stressed that driving an automobilenear the border is not a pervasively regulated activity where the nature of the activity givesrise to an expectation that a search will occur. Id. at 271-72. The Court also noted that thereis no certainty that the people being searched have engaged in the suspected activity thatgives rise to the search authority, since not all people near the border have crossed it. Id.

However, the Court quite clearly left open the possibility that the administrative searchdoctrine would be sufficient to permit some interior border searches under an area warrant.See id. at 270 & n.3 (plurality opinion); id. at 283-85 (Powell, J., concurring) (suggesting theuse of area warrants); id. at 288 (White, J., dissenting) (agreeing with Justice Powell).

9 See supra note 71 and accompanying text.9' United States v. Ortiz, 422 U.S. 891, 896 (1975); United States v. Baca, 368 F. Supp.

398, 412-15 (S.D. Cal. 1973).200 See Ortiz, 422 U.S. at 895-96; cf. Marshall v. Barlow's Inc., 436 U.S. 307, 323 (1978)

(warrant required under the Occupational Safety and Health Act in order to protect againstthe administrative officers' "almost unbridled discretion. . . as to when to search and whomto search"). It is not clear, however, that a random search on the highway at a fixed check-point involves a constitutionally excessive amount of discretion. See, e.g., Delaware v.Prouse, 440 U.S. 648, 663 (1979) (suggesting that warrantless license check stops by police atfixed checkpoints might be constitutional); State v. Deskins, 234 Kan. 529, 541-42, 673 P.2d1174, 1184-85 (1983) (approving warrantless drunk driving checkpoints); State v. Coccomo,177 N.J. Super. 575, 581-84, 427 A.2d 131, 134-35 (Super. Ct. Law Div. 1980) (approvingwarrantless license checks of every fifth car to pass through a fixed police checkpoint); Peo-ple v. Ingle, 36 N.Y.2d 413, 414-15, 330 N.E.2d 39, 40, 369 N.Y.S.2d 67, 69 (1975) ("absentreasonable suspicion of a vehicle violation . . . [warrantless license checks are] permissibleonly when conducted according to nonarbitrary, nondiscriminatory, uniform procedures fordetecting violations"); cf. United States v. Albarado, 495 F.2d 799, 806 (2d Cir. 1974) (ap-proving airport metal detector searches); United States v. Davis, 482 F.2d 893, 910 (9th Cir.1973) (same).

Some states have invalidated warrantless checkpoints when officers operating them hadbeen given too much discretion, without rejecting the propriety of such stops altogether.See, e.g., State ex rel. Ekstrom v. Justice Court, 136 Ariz. 1, 5, 663 P.2d 992, 996 (1983);Commonwealth v. McGeoghegan, 389 Mass. 137, 144, 449 N.E.2d 349, 353 (1983); State v.Marchand, 104 Wash. 2d 434, 706 P.2d 225 (1985) (en banc) (striking down police spotchecks of vehicles to examine licenses, registrations, and equipment as vesting too muchdiscretion in the patrolmen). In South Dakota, police cannot establish a checkpoint to iden-tify drunk drivers without first obtaining a warrant. State v. Olgaard, 248 N.W.2d 392 (S.D.

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In addition, the requirement of a warrant for immigrationsearches at distant border stations is not likely to frustrate govern-mental interests. Aliens will not try to enter the country moreoften if the government must receive judicial approval for distantborder searches, nor will it be difficult for the government to ob-tain an area warrant. This is particularly true if the judicial scru-tiny occurs before a checkpoint is established. Once a determina-tion has been made that a certain location meets the investigatoryneeds of the government without undue intrusion on private inter-ests, there is no need to reevaluate the checkpoint continually. Thecircumstances which made it an acceptable location do not changerapidly over time.10 1

Moreover, it would also be possible to relax the probable causerequirement, as has been done with administrative searches.0 2 Thestandards by which a judge or magistrate would evaluate a requestfor an area warrant are easily discernible and not difficult to estab-lish. Justice Powell's concurring opinion in Almeida-Sanchez sug-gests some possibilities:

(i) the frequency with which aliens illegally in the country areknown or reasonably believed to be transported within a par-ticular area; (ii) the proximity of the area in question to theborder; (iii) the extensiveness and geographic characteristicsof the area, including the roads therein and the extent of theiruse; and (iv) the probable degree of interference with therights of innocent persons, taking into account the scope ofthe proposed search, its duration, and the concentration of il-legal alien traffic in relation to the general traffic of the roador area.10 3

Given the strength of the government's interest in immigrationsearches at distant functional border equivalents, the judge ormagistrate should also consider the extent to which the proposedsearch will help to vindicate the government's obligation to main-tain the nation's sovereignty and territorial integrity by preventingillegal border crossings. 104

1976).

101 Cf. United States v. Dreyfus-de Campos, 698 F.2d 227, 229 (5th Cir.) (declining to

reevaluate a functional border equivalent without a demonstration of changed circum-stances), cert. denied, 461 U.S. 947 (1983).

102 See supra notes 66-68 and accompanying text.,o3 Almeida-Sanchez, 413 U.S. at 283-84 (Powell, J., concurring) (footnote omitted).

4o' One necessary difference between the warrant process for distant border searches

and that for administrative searches lies in the scope of the judicial function. Camara did

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These factors taken together provide a suitable framework inwhich to balance the sovereign interest in enforcing immigrationlaws against the overinclusive nature of the search. Allowing immi-gration searches at distant border equivalents, but only with priorjudicial scrutiny, provides sufficient checks to prevent the abuse offourth amendment rights by border patrol agents yet permits themaintenance of territorial sovereignty.1 0 5

CONCLUSION

Border searches have a long history of public and judicial ac-ceptance. On this historical basis alone, border searches have beenfound exempt from the fourth amendment's prohibition against"unreasonable" searches. Yet the constitutional limitations on"border" searches that are conducted within the interior of thecountry at functional border equivalents remain undefined. A purehistorical rationale for the border search exception provides noguidance; instead, principled limits upon searches at borderequivalent checkpoints can only be understood by reference to thetrue purpose of border searches-maintaining national sovereigntythrough limits on the immigration of aliens and the influx ofcontraband.

Searches may be undertaken at checkpoints that constitutevirtual or distant border equivalents. Customs and immigrationsearches conducted without a warrant at virtual border equivalentsfall squarely within the border search exception and thus are not

not envision judicial scrutiny of the "basic agency decision to canvass [a particular] area."387 U.S. at 532. The judicialfunction here proposed would necessarily include passing onexactly these basic decisions. Cf. Almeida-Sanchez, 413 U.S. at 282-83 (Powell, J.,concurring).

101 The test proposed by this comment resembles the Fifth Circuit's current practice ofscrutinizing distant border equivalent designations, but differs in several significant re-spects. First, this test requires prior judicial scrutiny and the issuance of a warrant. Thisprocedure protects against invasion of private interests by ensuring review of the justifica-tion for the checkpoint before it is established. In contrast, ex post judicial review can pre-vent only the use of unlawfully obtained evidence, not the unlawful intrusion by which thatevidence was obtained. Second, this test compares the checkpoint site proposed by the INSwith other possible locations that might be used. The Fifth Circuit's analysis involves nocomparative factors and simply makes an isolated determination whether a particular sitemeets the stated requirements. Third, this test, unlike the Fifth Circuit's analysis, is in-formed by explicit consideration of the important role national sovereignty interests play indetermining the propriety of a distant border equivalent designation. Most importantly, thistest limits the scope of the searches permitted at distant border equivalents. It distinguishesimmigration searches from the more intrusive and less justifiable customs searches of per-sonal luggage or containers. The latter searches would no longer be permitted at distantborder checkpoints without full fourth amendment safeguards.

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1985] Fourth Amendment Border Equivalents 1145

subject to fourth amendment requirements. Because of their over-inclusiveness, however, searches at distant border locations arebest considered through the analytic framework used to assess ad-ministrative searches. The resulting balance between the individ-ual's privacy and autonomy interests and the sovereign interests ofthe government suggests that customs searches at distant borderequivalents should not be allowed without full fourth amendmentsafeguards. Immigration searches, in contrast, should be permittedat distant border equivalents whenever they are undertaken pursu-ant to a valid area warrant, which may be granted under a reducedstandard of probable cause.

Paul S. Rosenzweig

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